The ‘law of war’ is a paradox, an exercise by turns noble and futile. ‘A remedy must be found,’ Grotius wrote, ‘for those who believe that in war nothing is lawful, and for those for whom all things in war are lawful.’ Geoffrey Best, in his magnificent exposition of the modern pursuit of legal restraint on warfare, opens with another aphorism, from Hersch Lauterpacht: ‘If international law is, in some ways’ at the vanishing-point of law, the law of war is, perhaps even more conspicuously, at the vanishing-point of international law.’
The remarkable thing is that Grotius’s remedy does exist. Despite the obvious obstacles to any form of humanity in warfare, there are modest but genuine successes in legislating for, and achieving, restraint in the way that soldiers conduct war. As Best shows, generals and their lawyers take the laws of war very seriously indeed. International protocols and internal military guidelines give much latitude to commanders on the ground. This may make the law appear feeble, sometimes to the point of vacuity, but it is also its realism.
Chief among the paradoxes of the law of war is that it cannot be enforced. The moral opprobrium that has surrounded the use of poison gas is an exception that proves the rule; another is the fact that the first post-Nuremberg trials of military commanders for war crimes have only begun this year, in Ethiopia. In prolonged and desperate wars, generals (and politicians – it is foolish to believe that the ‘military mind’ is any more brutal than the civilian) repeatedly rewrite the moral rules to give themselves more latitude. Impunity is the order of the day – but so is a concern for basic humanity. To compound the irony, it is the beguiling possibility of the humanitarian writ at last being enforced, either by the United Nations or by powerful member states at the UN’s invitation, that has led directly to the law of war being undermined.
A year ago, the American Secretary of State, Warren Christopher, put his first-class legal brain to work trying to re-interpret the 1948 Genocide Convention in order to extricate the US Government from its clear duty ‘to prevent and punish the crime of genocide’ in Rwanda. The State Department directed its staff to say only that ‘acts of genocide may have been committed’. When this piece of legal chicanery was derided in the press, the State Department changed its line: the Genocide Convention merely ‘enabled’ signatories to act, rather than imposed a duty on them.
Something similar, if more insidious, is happening to the Geneva Conventions of 1949, the masterpiece of the laws of war – or ‘international humanitarian law’, as its proponents now prefer to call it. The change in terminology is more than the abandonment of monosyllables. Best is worried: ‘the fact is the word “humanitarian” has come to carry a slippery mixture of meanings and applications which facilitate ambiguous and manipulative uses.’ The usage ‘international humanitarian law’ – or worse still, ‘IHL’ – is not merely anodyne, it obscures the central tension between military necessity and humane conduct. ‘Humanitarianism’ has never been legally defined: the closest we get is knowing what it is not, as in the ruling by the International Court of Justice in The Hague that US aid to the Nicaraguan Contras was not ‘purely humanitarian’. Larry Minear and Thomas Weiss respond that ‘humanitarianism is simply what the International Committee of the Red Cross does.’
Among the 1949 Geneva Conventions is a provision for the protection of humanitarian relief, with strict conditions to ensure that this brings minimum military advantage to the controlling army. Such relief could be provided by the Red Cross and – almost as an afterthought – ‘any other impartial humanitarian body’. At the time, humanitarian relief was a small and marginal affair, almost the exclusive preserve of the ICRC and its national sections, run with deliberation and discretion. Minear and Weiss’s definition would have done in 1949, and it might even have passed in 1989. But not now. The afterthought has become the hinge on which humanitarianism has swung, transforming itself from prime concern with the protection of human beings into a matter largely of emergency relief. In 1949, few thought that any other impartial humanitarian body would evolve into today’s multi-billiondollar ‘humanitarian international’ – the multifarious, cosmopolitan élite of international bureaucrats, relief workers, human rights activists and ‘opinion formers’ who have taken over the humanitarian agenda. Today, ‘humanitarianism’ is what (among others) Unicef, Médecins Sans Frontières, Edinburgh Direct Action and Human Rights Watch do. And as a result, the ICRC has been obliged, subtly but significantly, to change its working practices.
Best’s volume will surely become a standard reference for the period 1945-90, but it stops short of documenting the insidious revolution in IHL that has been wrought over the last four years by a succession of Security Council resolutions, often adopted after intense lobbying and media exposure by relief agencies. Coinciding with a new eagerness to enforce the writ of the Security Council with troops, the early Nineties marked the clearest opportunity for the humanitarian international. Minear and Weiss argue that ‘internationally the moment is propitious for directing overdue attention to assist and protect those affected by wars.’ The reality is that while assistance multiplies, protection withers – or to be precise, is redirected. ‘In fact, humanitarians have come to resemble the objects of their labours. Those who work for the Red Cross or the United Nations often are denied their right of access, harassed and held hostage, injured and killed ... International humanitarian actors suffer indignities differing only in degree from those experienced by distressed civilian populations.’ This is nonsense. The idea that UN workers, eating imported food and wearing flak jackets, paid perhaps $10,000 per month, with generous leave, ready to be evacuated at a moment’s notice, share the same suffering would appear ludicrous to the inhabitants of Sarajevo, Mogadishu or Kigali and to the local staff of relief agencies. It is the kind of rhetoric that the publicity departments of relief agencies use when seeking to sanctify (and immunise from criticism) their operations, with the blood of their unfortunate staff who have sacrificed their lives.
Behind the insensitivity is something more worrying still. ‘Humanitarian access’, the most slippery of all the concepts introduced into the laws of war, has been subtly changed to focus on the privileges of the aid-giver, rather than the rights of the recipient. The post-Cold War possibility of enforcement has further swivelled the concerns of IHL – ‘protection’ is ensured not by means of discreet diplomacy, but with troops and tanks. UN Security Council Resolutions 770 on former Yugoslavia and 794 on Somalia (both adopted in 1992) pioneered a new doctrine: the physical protection of the humanitarians. This was the prime mandate given to Unprofor in Bosnia and the US Marines in Somalia.
Minear and Weiss point out that the presence of military escorts has often made relief work in Bosnia more, not less dangerous. In an emergency they advise: ‘Don’t just do something, stand there!’ (And think.) But they also describe the Security Council as having ‘awoken from its Cold War slumber to discover its humanitarian responsibilities’. In their book, absorbing details and fascinating insights are as common and as random as elementary errors of fact and analysis. The basic problem is that Minear and Weiss accept the premises of the humanitarian international, which leads to inescapable contradictions.
If war is too serious to be left to the generals, humanitarianism is too important to be entrusted to the relief agencies. The humanitarians seized their moment, but the result was a succession of débâcles, or, in Minear and Weiss’s words, ‘clouds on the humanitarian horizon’. Despite Minear and Weiss’s optimism, their big chance has slipped away: the humanitarian international will continue to grow (Care hopes to double its $450 million annual budget by the end of the decade) and, intermittently, dominate the agenda for poor and marginal countries, but it will fail to achieve the transformation of the UN system that was anticipated in the halycon days of the ‘New World Order’.
In the meantime, immense damage has been done to the project of humane conduct in war. Protecting humanitarian relief is a fine aspiration, and its tangible results in places such as Sarajevo are not to be despised. But material relief in wartime brings dangers, known all too well to the drafters of the Geneva Conventions, who balanced the combatant’s duty to respect humanitarian aid against the aid organisation’s responsibility to ensure that no aid was diverted to soldiers and no strategic advantage given. The institutional interest of the humanitarian international, and the power of its media lobby, has forever tilted the balance against such attempts at impartiality. For purposes of fundraising, most relief agencies simply ignore the issue, deny the reality, or else publicly anguish over their intolerable situation, and then proceed to tolerate it.
Relief agencies usually reach a modus Vivendi with military commanders on the basis of the mutually convenient fiction that humanitarian aid is necessarily impartial. And it is this fiction that IHL is now being formulated to protect. Laws founded on such a pretence invite cynicism and contempt, which they duly receive from the likes of Generals Mladic and Aidid.
This is perilous ground, not least because the possibility of the enforcement of humanitarian access by the UN threatens to occlude the important distinction between the laws of war (jus in bello) and the right to wage war (jus ad bellum). As Best explains, there is a powerful rationale behind the legal tradition of separating the two, in that those who believe they are fighting a ‘just war’ will tend inevitably to believe that their end justifies any available means. Only by establishing the (generally useful) fiction that belligerents are equal is it possible to develop (and agree) rules to limit the conduct of hostilities. This is the cornerstone of the laws of war.
In one of the most fascinating passages of his book, Best elaborates some of the dangers that nonetheless arise from this separation. In order for jus in bello to operate, there has to be a definition of the logic of military activities. This is duly found in the notion of ‘imperative military necessity’ – in other words, the commander’s professional duty to win. A fundamental principle of the laws of war is proportionality: the military means employed, and the likelihood of killing civilians and destroying civilian property, should not be disproportionate to the military advantage to be gained. But victory is an end in itself: there is rule to determine when it is worthwhile. On the contrary, the doctrine of ‘military necessity’ invites the commander to use everything at his disposal: war has a logic of its own. It bombers are available (even though they may have been manufactured with entirely different targets in mind), their use will be legitimate as long as it is perceived at the time to meet the criterion of ‘military necessity’. Referring to the aerial bombardment of cities, especially during the Second World War, Best argues that ‘no other area of war practice shows such extreme examples of how far uncontrolled, unreflective or unprincipled commanders can stretch bits of the jus in bello to excuse extreme departures from anything the jus ad bellum could conceivably recommend.’ Consideration of strategic bombing is conspicuously absent from the Geneva Conventions, as it was from the Nuremberg trials. It was victor’s justice, but justice nonetheless, and the most enlightened then on offer.
The drafting of the Geneva Conventions of 1949, which takes up nearly half of War and Law, was almost entirely a Euro-American affair, overwhelmingly informed by the experience of the Second World War. Though guerrilla warfare (such as that of Tito’s partisans) played a role, the focus was on inter-state warfare within the Western tradition. With a handful of exceptions, warfare since 1945 has been very different in nature: mostly guerrilla insurgencies. By the Seventies it was clear that the Geneva Conventions needed to be expanded to cope.
The problem was not a cultural one: restraints on the methods of warfare have been applied in all societies, often far more effectively in African, Asian and indigenous American societies than in Europe. (Lack of moral restraint in war, symbolised by the Maxim gun, is one reason European armies conquered so much of the globe.) At issue, rather, was the status of ‘people’s war’or ‘terrorism’, on one hand, and ‘total strategies’ of counter-insurgency, on the other. Warfare of this kind dissolves the combatantcivilian distinction on which the laws of war are founded. Insurgencies are possible only if guerrillas can hide among the people, ‘like a fish in water’ according to Mao’s famous dictum. Colonel Roger Trinquier, a French commander during the Battle of Algiers, argued that ‘the inhabitant in his home is the centre of the conflict ... Like it or not, the two camps are compelled to make him participate in the conflict; in a certain sense, he has become a combatant too.’ In Algeria the civilian population was subjected to forcible relocation, surveillance, restrictions on social and economic activity and, for civil patrols, coercive mobilisation. Commanders such as Trinquier treated suspected insurgents as common criminals or traitors. And it was all quite legal. In insurrectionary wars, the legal rights of civilians are much eviscerated while insurgents are granted none at all (above all, in Algeria they were denied POW status).
By 1974, when the Diplomatic Conference on Humanitarian Law convened to draft the Additional Protocols to the Geneva Conventions, the majority of the member states of the UN General Assembly were countries from the developing world (as it could then have been called without too much euphemism), and almost half were African. For them, the old legal framework was unacceptable. The Conference wanted wars of national liberation against foreign colonial powers to be treated as ‘international’ rather than purely internal conflicts (thus granting POW status to captured guerrillas). This was successful: in 1977, struggles against colonial, racist or foreign domination were deemed ‘international’, much to the distaste of many Western legal purists. But by then it was too late for the change to have much impact. The two principal villains (Israel and South Africa) took no notice, while similar cases of occupation, by non-white regimes, in Eritrea, Western Sahara. East Timor, went largely or wholly unchallenged in the UN. It remains to be seen if the international provision in IHL has become an anachronism, or whether nationalists in places such as Chechnya will attempt to revive it.
The substance of the 1977 protocols also broadened the scope of IHL, criminalising much of what the likes of Col Trinquier had practised. However, there are some obvious lacunae: no prohibition on forcible population relocation or on the restriction of economic activity – restrictions on food marketing, for example, can be instrumental in creating famine. Many in the non-aligned group in the UN would have liked national liberation struggles to be defined in law as ‘just wars’, in line with their condemnations of Israel and South Africa. This did not happen. But the military activities of UN-authorised forces, and the UN itself, have re-invigorated the doctrine of the just war. One international lawyer seconded to the UN in Somalia went so far as to suggest (unofficially) that it might be illegal for Somalis to fire on UN troops, even in self-defence. Although it fell short of this absurdity, the UN did in fact conflate jus ad bellum with the jus in bello, and – as they did not do in the case of anti-colonial liberation struggles – made this a legal reality.
In a little-noticed precedent, the UN operation in Somalia granted itself exemption from the Geneva Conventions. During the undeclared war between Unosom and General Aidid in 1993, when I was investigating a number of incidents, including a UN attack on Mogadishu’s largest hospital, on behalf of African Rights, a UN military attorney said that Unosom forces were merely ‘guided’ by the Geneva Conventions, not legally bound by them. In fact, grave breaches of the Geneva Conventions, including helicopter attacks on civilians and civilian targets, were routine. After one such attack on 9 September 1993, Major David Stockwell, a UN spokesman, said that ‘there are no sidelines or spectator seats – the people on the ground are considered combatants.’ Col Trinquier would have been proud. Later, one of Stock-well’s colleagues justified detention of Somalis without charge in terms of Chapter VII of the UN Charter, which authorises the use of ‘all necessary measures’. This legal point – ironically obscured by the ‘humanitarian’ consequences of the military action – did not escape the UN commanders, who issued an instruction to arrest and detain me for having questioned them on it.
UN impunity has been taken a stage further in the conflict with the Bosnian Serbs. According to the Geneva Conventions, the matter is simple: when the UN began bombing the Bosnian Serbs, it became a combatant party. Though neither the UN nor the Bosnian Serbs have signed the Geneva Conventions, the fundamental principle remains: the two combatants have equal legal status. But – pace Somalia – the UN has seized the chance to rewrite the laws of war. It insists on calling the captured UN troops ‘hostages’. They are no such thing: they are prisoners of war. It is a key difference: taking hostages is illegal, taking POWs is a standard and legal practice in wartime. If all UN prisoners are by definition hostages, then the absurd doctrine of the infallibility of UN troops has been made a reality.
The lawyers of war and the international humanitarians would be well advised to ponder Best’s Laws of War, for its scholarly realism and its humanity. The laws of war are well worth protecting against the oncoming humanitarian juggernaut.